EXHIBIT 10.4
EMPLOYMENT AGREEMENT 11/17/00
This Employment Agreement (the "Agreement") in entered into as of November 17,
2000 Between INSIGHT DIRECT WORLDWIDE, INC. ("Company"), and Dino Farfante
("Executive").
RECITALS
Executive is currently employed by Company in the position of Executive Vice
President. Company is the wholly owned subsidiary of Insight Enterprises, Inc.
(the "Parent"). Company has decided to offer executive an employment agreement,
the terms and provisions of which are set forth below.
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1) TERMS OF AGREEMENT
a) Initial Term. Executive shall be employed by Company for the duties set
forth in Section 2 for a two year term, commencing as of 1/01/01 and
ending on 12/31/02 (the "initial Term"), unless sooner terminated in
accordance with the provisions of this Agreement.
b) Renewal Term: Employment period Defined. On each successive day after
the commencement of the Initial Term, without further action on the part
of Company or Executive, this Agreement shall be automatically renewed
for a new 2-year term dated effective and beginning upon each such
successive day (the "Renewal Term"); provided, however, that Company may
notify Executive, or the Executive may notify the Company, at any time,
that there shall be no renewal of this Agreement, and in the event of
such notice, neither party shall be under any obligation to renew or
extend this Agreement. The period of time commencing as of the date
hereof and ending on the effective date of the termination of employment
of Executive under this or any successor Agreement shall be referred to
as the "Employment Period".
2) POSITION AND DUTIES
a) Job Duties. Company does hereby employ, engage and hire Executive as
Executive Vice President, of Company, and Executive does hereby accept
and agree to such employment, engagement, and hiring. Executive's duties
and authority during the Employment Period shall be such executive and
managerial duties as the President and Chief Operating Officer
("President") shall reasonably provide; provided that such duties and
authority shall not be materially different than they are at the date of
this Agreement; further that the authority of Executive shall not be
diminished, and that Executive shall not be demoted. Executive will
devote such time as the President shall reasonably determine; provided
that such devotion of time shall not be materially different from
Executive's devotion of time at the date of this Agreement, reasonable
absences because
of illness, personal and family emergencies excepted. Executive shall be
required to work and travel in various countries in Europe throughout the
term of this agreement.
b) Best Efforts. Executive agrees that at all times during the Employment
Period he will faithfully, and to the best of his ability, experience and
talents, perform the duties that may be required of and from him and
fulfill his responsibilities hereunder pursuant to the express terms
hereof. Executive's ownership of, or participation (including any board
memberships) in, any entity (other than Company or Parent) must be
disclosed to the President; provided, however, that Executive need not
disclose any equity interest held in any public company or any private
company that is not engaged in a competing business as defined in Section
10 of this Agreement when such interest constitutes less than 1% of the
issued and outstanding equity of such public or private company.
3) COMPENSATION
a) Base Salary. Company shall pay Executive a "Base Salary" in consideration
for Executive's services to Company at the rate of $270,000 per annum. The
Base Salary shall be payable as nearly as possible in equal semi-monthly
installments or in such other installments as are customary from time to
time for Company's or Parent's executives. The Base Salary may be adjusted
from time to time in accordance with the procedures established by Company
or Parent for salary adjustments for executives, provided that the Base
Salary shall not be reduced.
b) Incentive and Benefit Plans. Executive will be entitled to participate in
those incentive compensation and benefit plans reserved for the Company's
or Parent's executives, including any stock option plan maintained by
Parent, in accordance with the terms of such compensation and benefits
plans. Executive shall also be permitted to participate in such incentive
compensation plans as adopted by the President from time to time.
Additionally, the Executive shall be entitled to participate in any other
benefit plans sponsored by Company or Parent that employees are eligible
for, including but not limited to, any savings plan, life insurance plan
and health insurance plan available generally to employees of Company or
Parent from time to time, subject to any restrictions specified in, or
amendments made to, such plans.
c) Vacation. The Executive shall be entitled to four (4) weeks vacation
during the calendar year, and such additional vacation time as the
President shall approve, with such vacation to be scheduled and taken in
accordance with the Company's or Parent's standard vacation policies, but
this provision is not intended to interfere with or limit Executive's
discretion to determine the appropriate time to be devoted to his duties
hereunder.
4) BUSINESS EXPENSES
The Company will reimburse Executive for any and all necessary, customary and
usual expenses which are incurred by Executive on behalf of Company, provided
Executive
provides Company with receipts to substantiate the business expense in
accordance with Company's policies or otherwise reasonably justifies the
expense to the Company.
4) DEATH OR DISABILITY
a) Death. This Agreement shall terminate upon Executive's death. Executive's
estate shall be entitled to receive the Base Salary due through the date
of his death and any incentive compensation payable for quarters ended
prior to Executive's death, but no Base Salary or other payment or
benefit will be payable after death except as expressly provided
elsewhere in this Agreement. The determination of any bonuses or
incentive compensation to be payable for quarters ending following
Executive's death will be made in accordance with the provisions of any
incentive compensation program, practice, or policy in which Executive
participates at the time of Executive's death. If there is no written
incentive compensation program, policy, or practice in effect at the time
of Executive's death, Company, in the exercise of its discretion, may
elect to pay to Executive's estate a portion of the incentive
compensation to which Executive would have been entitled (had Executive
not died) for the year in which this Agreement terminated due to
Executive's death.
b) Disability. This Agreement shall also terminate in the event of
Executive's "Disability". For purposes of this Agreement, "Disability"
means the total and complete inability of Executive for a minimum period
of six (6) months to perform the essential duties associated with his
normal position with Company (after any accommodations required by the
Americans with Disabilities Act or applicable state law) due to a
physical or mental injury or illness that occurs while Executive is
actively employed by Company. If this Agreement is terminated due to
Executive's Disability, Executive shall receive the severance
compensation called for by Section 6(c).
5) TERMINATION BY COMPANY
a) Termination for Cause. Company may terminate this Agreement at any time
during the Initial Term or any Renewal Terms for "Cause" upon written
notice to Executive. If Company terminates this Agreement for "Cause",
Executive's Base Salary shall immediately cease, and Executive shall not
be entitled to severance payments, incentive compensation payments or any
other payments or benefits pursuant to this Agreement, except for any
vested rights pursuant to any benefit plans in which Executive
participates and any accrued compensation, vacation pay and similar
items. For purposes of this Agreement, the term "Cause" shall mean the
termination of Executive's employment by Company for one or more of the
following reasons:
(1) The criminal conviction for any felony involving theft or
embezzlement from Company or any affiliate;
(2) The criminal conviction for any felony involving moral turpitude
that reflects adversely upon the standing of Company in the
community;
(3) The criminal conviction for any felony involving fraud committed against
Company, any affiliate or any individual or entity that provides goods or
services to, receives goods or services from or otherwise deals with Company
or any affiliate;
(4) Acts by Executive that constitute repeated and material violations of this
Agreement, any written employment policies of Company or Parent, or any
written directives of Company or Parent. A violation will not be considered
to be "repeated" unless such violation has occurred more than once and after
receipt of written notice from Company of such violation; or
(5) Failure to fully cooperate in any investigation by the Company or Parent.
Any termination of Executive when there is not Cause is "without Cause." If
Company terminates Executive for Cause, and it is later determined that Cause
did not exist, Company will pay Executive the amount he would have received
under this Agreement if his employment had been terminated by Company without
Cause, plus interest at the Prime Rate published by the Wall Street Journal on
the date of termination. Such payments and interest shall be calculated as of
the effective date of the initial termination. Payment shall be made within
fifteen (15) days after such later determination is made.
b) Termination Without Cause. Company also may terminate this Agreement at any
time during the Initial Term or Renewal Terms without Cause. If Company
terminates this Agreement pursuant to this paragraph, Company shall provide
Executive with ninety (90) days advance written notice. This Agreement shall
continue during such notice period. The termination of this Agreement shall
be effective on the ninetieth (90th) day (the "Date") following the day on
which the notice is given. Company may, at its discretion, place Executive on
a paid administrative leave during all or any part of said notice period.
During the administrative leave, Company may bar Executive's access to
Company's offices or facilities if reasonably necessary to the smooth
operation of Company, or may provide Executive with access subject to such
reasonable terms and conditions as Company chooses to impose.
c) Severance Compensation. Should Executive's employment by Company be
terminated without Cause, Executive shall receive as a lump sum immediately
upon such termination the total amount of his Base Salary for the remainder
of the Initial Term or current Renewal Term, as applicable, determined as if
the employment of the Executive had not been terminated prior to the end of
such term and as if the Executive had continued to perform all of his
obligations under this Agreement and as an employee and officer of the
Company. Executive shall have no duty to mitigate damages in order to receive
the Compensation described by this Subsection, and the Compensation shall not
be reduced or offset by other income, payments or profits received by
Executive from any source.
d) Incentive Compensation. Executive shall not be entitled to receive any
incentive compensation payments for the fiscal quarter in which his
employment is terminated for Cause or any later quarters. If Executive is
terminated without Cause, Executive shall
receive as a lump sum immediately upon such termination the total amount of
incentive compensation payments determined in accordance with the provisions
of any incentive compensation program, practice, or policy in which Executive
participates on the effective date of the termination, determined as if the
employment of the Executive had not been terminated prior to the end of the
Initial Term or latest Renewal Term, if later, and as if the financial
performance of Company upon which the programs, practice, or policy is
determined continues as it had been for the immediately preceding last four
(4) fiscal quarters ended prior to either (i) the date of notice of
termination or (ii) the date of termination, as Executive shall elect after
receiving the report of such performance for the applicable fiscal quarters,
and as if the Executive had continued to perform all of his obligations under
this Agreement and as an employee of the Company. Executive shall have no
duty to mitigate damages in order to receive the Compensation described by
this Subsection and the Compensation shall not be reduced or offset by other
income, payments or profits received by Executive from any source. If there
is no binding incentive compensation program, policy, or practice in effect
on the effective date of the termination, Company, in the exercise of its
discretion, may elect to pay Executive a portion of the incentive
compensation to which he would have been entitled (had his employment not
terminated) for the quarter in which his employment is terminated without
Cause.
e) Other Plans. Except to the extent specified in this Section 6 and as provided
in this Subsection (e), termination of this Agreement shall not affect
Executive's participation in, distributions from, and vested rights under any
employee benefit plan of Company, which will be governed by the terms of
those respective plans, in the event of Executive's termination of
employment. If Executive is terminated without Cause, then Executive shall
become fully vested under any and all stock bonus and stock option plans and
agreements in which Executive had an interest, vested or contingent. If
applicable law or the terms of such plan(s) prohibit such vesting, then
Company shall pay Executive an amount equal to the value of the benefits and
rights that would have, but for such prohibition, been vested. Executive
shall have no duty to mitigate damages in order to receive the Compensation
described by this Subsection and the Compensation shall not be reduced or
offset by other income, payments or profits received by Executive from any
source.
f) Example. For example, if Company provides notice to Executive of Termination
without Cause on January 1, 2002, then the Employment Period ends ninety days
thereafter, on April 1, 2002, and Company will pay to Executive in a lump sum
payment immediately thereafter the sum of an amount equal to (i) Executive's
Base Salary for the next two (assuming the contract started Jan 1, 2002) (2)
years plus (ii) the incentive compensation for eight fiscal quarters computed
as stated above, and Executive shall become fully vested in all stock bonus
and stock option plans and agreements in which Executive had an interest.
6) TERMINATION BY EXECUTIVE
a) General. Executive may terminate this Agreement at any time, with or
without "Good Reason." If Executive terminates this Agreement without Good
Reason, Executive shall provide Company with ninety (90) days advance
written notice. If Executive terminates this Agreement with Good Reason,
Executive shall provide Company with thirty (30) days advance written
notice.
b) Good Reason Defined. For purposes of this Agreement, "Good Reason" shall
mean and include each of the following (unless Executive has expressly
agreed to such event in a signed writing):
(1) The demotion of Executive by Company, such as (i) assignment to
Executive of any duties that materially are inconsistent with or
inferior to his positions, duties, responsibilities, and status
with Company as in effect on the date of execution of this
Agreement (the "Relevant Date"); or (ii) a materially adverse
change in his titles, offices, or authority as in effect on the
Relevant Date; except in connection with the termination of this
Agreement for Cause, Executive's death or Disability, termination
by Executive other than for Good Reason, or the expiration of the
Agreement without renewal;
(2) The recommended travel of Executive by the President in furtherance
of Company business which is materially more extensive than
Executive's travel or contemplated travel at the Relevant Date;
(3) Failure by Company to continue in effect any incentive compensation
program, policy or practice, or any savings, life insurance, health
and accident or disability plan in which Executive is participating
on the Relevant Date (or plans which provide Executive with
substantially similar benefits) or the taking of any action by
Company which would adversely affect Executive's participation in
or materially reduce his benefit under any of such plans or deprive
him of any material fringe benefit enjoyed by him as of the
Relevant Date or any later date. Amendment or modification of said
plans, to the extent required pursuant to applicable federal law
and the procedures set forth in the respective plan, or amendments
of such plans that apply to either all employees generally or all
senior executives shall not be considered to be "Good Reason" for
purposes of this clause (5);
(4) Failure of Company to obtain a specific written agreement
satisfactory to Executive from any successor to the business, or
substantially all the assets of Company, to assume this Agreement
or issue a substantially similar agreement;
(5) The termination or attempted termination of this Agreement by
Company purportedly for Cause if it is thereafter determined that
Cause did not exist under this Agreement with respect to the
termination;
(6) Breach of any material provisions of this Agreement by
Company which is not cured within thirty (30) days after
receipt by Company of written notice of such breach from
Executive; or
(7) Any action taken by Company over the specific,
contemporaneous, written objection of the Executive that is
likely (i) to cause a material reduction in the value of
this Agreement to Executive or (ii) to materially impair
Executive's abilities to discharge his duties hereunder.
This provision is not intended to affect either the
Company's or Executive's right to terminate this Agreement
as provided for elsewhere herein.
c) Effect of Good Reason Termination. If Executive terminates this
Agreement for Good Reason (as defined in Section 7(b)), Executive
shall be entitled to receive all of the payments and benefits provided
by Section 6 and otherwise in this Agreement to the same extent as if
this Agreement had been terminated by Company without Cause.
d) Effect of Termination without Good Reason. If Executive terminates
this Agreement without Good Reason, Executive shall be entitled to
receive his Base Salary through the effective date of his termination.
Executive's entitlement to receive any other amount shall be
determined in accordance with the provisions of any benefit plans in
which Executive participates on the effective date of the termination.
Executive shall not be entitled to receive any incentive compensation
for the quarter in which his employment is terminated by him without
Good Reason or any later quarter.
7) CHANGE IN CONTROL OF COMPANY
a) General. Company considers the maintenance of a sound and vital
management to be essential to protecting and enhancing the best
interests of Company, Parent and Parent's shareholders. Company and
Parent recognize that, as is the case with many publicly held
corporations, the continuing possibility of an unsolicited tender
offer or other takeover bid for Parent may be unsettling to Executive
and other senior executives of Company or Parent and may result in the
departure or distraction of management personnel to the detriment of
Company, Parent and Parent's shareholders. The President has
previously determined that it is in the best interests of Company,
Parent and Parent's shareholders for Company to minimize these
concerns by making this Change in Control provision an integral part
of this Employment Agreement, which would provide the Executive with a
continuation of benefits in the event the Executive's employment with
Company terminates under certain limited circumstances.
This provision is offered to help assure a continuing dedication by
Executive to his duties to Company notwithstanding the occurrence of a
tender offer or other takeover bid. In particular, the President
believes it important, should Company or Parent receive proposals from
third parties with respect to its future, to enable Executive, without
being influenced by the uncertainties of his own situation, to assess
and advise the President whether such proposals would be in the best
interests of Company, Parent and Parent's shareholders and to take
such other action regarding such proposals as the President
might determine to be appropriate. The President also wishes to demonstrate
to Executive that Company is concerned with his welfare and intends to see
he is treated fairly.
b) Continued Eligibility to Receive Benefits. In view of the foregoing and in
further consideration of Executive's continued employment with Company, if
a Change in Control occurs, Executive shall be entitled to a lump-sum
severance benefit provided in subparagraph (c) of this Section 8 if, prior
to the expiration of twenty-four (24) months after the Change in Control,
Executive notifies Company of his intent to terminate his employment with
Company for Good Reason or Company terminates Executive's employment
without Cause or if, within thirty (30) days after the first anniversary of
the Change in Control, Executive terminates his employment with Company. If
Executive triggers the application of this Section by terminating
employment for Good Reason, he must do so within sixty days (60) days
following his receipt of notice of the occurrence of the last event that
constitutes Good Reason. The full severance benefits provided by this
Section shall be payable regardless of the period remaining until the
expiration of the Agreement without renewal.
c) Receipt of Benefits. If Executive is entitled to receive a severance
benefit pursuant to Section 8(b) hereof, Company will provide Executive
with the following benefits:
(1) A lump sum severance payment within (10) days following
Executive's last day of work equal to the sum of (i) two times the
greater of Executive's annualized Base Salary in effect on the
date of termination of employment or Executive's highest
annualized Base Salary in effect on any date during the term of
this Agreement and (ii) two times the amount of all incentive
compensation paid or accrued to Executive for the Company's most
recent last four fiscal quarters then ended.
(2) Executive shall become vested in any and all stock bonus and stock
option plans and agreements of Company or Parent that were granted
prior to the change in control in which Executive had an interest,
vested or contingent. If applicable law prohibits such vesting,
then Company shall pay Executive an amount equal to the value of
benefits and rights that would have, but for such prohibition,
have been vested in Executive.
(3) Executive will continue to receive life, disability, accident and
group health and dental insurance benefits substantially similar
to those which he was receiving immediately prior to his
termination of employment until the earlier of (i) the end of the
period of 24 months following his termination of employment or
(ii) the day on which he becomes eligible to receive any
substantially similar continuing health care benefits under any
plan or program of any other employer. The benefits provided
pursuant to this Section shall be provided on substantially the
same terms and conditions as they were provided prior to the
Change in Control, except that the full cost of such benefits
shall be paid by Company. Executive's
right to receive continued coverage under Company's group health plans
pursuant to Section 601 et seq. of the Employee Retirement Income
Security Act of 1974, as it may be amended or replaced from time to
time, shall commence following the expiration of his right to receive
continued benefits under this Agreement. Executive's right to receive
all forms of benefits under this Section is reduced to the extent he is
eligible to receive any health care benefit from any other employer
without his request to pay any premium with respect thereto.
(4) Executive shall have no duty to mitigate damages or loss in order to
receive the benefits provided by this Section or in this Agreement. If
Executive is entitled to receive the payments called for by this
Section 8(c), Executive's right to receive the compensation provided by
Section 6(c) or 7(c) shall to the extent of such payments be reduced.
d) Change in Control Defined. For purposes of this Agreement, a "Change in
Control" means any one or more of the following events:
(1) When the individuals who, at the beginning of any period of two years
or less, constituted the Board of Parent cease, for any reason, to
constitute at least a majority thereof unless the election or
nomination for election of each new director was approved by the vote
of at least two thirds of the directors then still in office who were
directors at the beginning of such period;
(2) A change of control of Parent through a transaction or series of
transactions, such that any person (as that term is used in Section 13
and 14(d)(2) of the Securities Exchange Act of 1934 ("1934 Act")),
excluding affiliates of the Company as of the Effective Date, is or
becomes the beneficial owner (as that term is used in Section 13(d) of
the 1934 Act) directly or indirectly, of securities of Parent
representing 50% or more of the combined voting power of Parent's then
outstanding securities;
(3) Any merger, consolidation or liquidation of Parent in which Parent is
not the continuing or surviving company or pursuant to which stock
would be converted into cash, securities or other property, other than
a merger of Parent in which the holders of the shares of stock
immediately before the merger have the same proportionate ownership of
common stock of the surviving company immediately after the merger;
(4) The shareholders of Parent approve any plan or proposal for the
liquidation or dissolution of Parent; or
(5) Substantially all of the assets of Parent are sold or otherwise
transferred to parties that are not within a "controlled group of
corporations" (as defined in Section 1563 of the Internal Revenue Code
of 1986, as amended (the "Code") in which Parent is a member of the
Relevant Date.
e) Good Reason Defined. For purposes of this Section, "Good Reason" shall
have the meaning assigned to it in Section 7(b).
f) Notice of Termination by Executive. Any termination by Executive under
this Section 8 shall be communicated by written notice to Company which
shall set forth generally the facts and circumstances claimed to provide a
basis for such termination.
8) CONFIDENTIALITY
Executive covenants and agrees to hold in strictest confidence, and not disclose
to any person, firm or company, without the express written consent of Company,
any and all of Company's, Parent's and all other subsidiaries of Parent's
(collectively, "Parent's Family") confidential data, including but not limited
to information and documents concerning Parent's Family's business, customers,
and suppliers, market methods, files, trade secrets, or other "know-how" or
techniques or information not of a published nature or generally known (for the
duration they are not published or generally known) which shall come into his
possession, knowledge, or custody concerning the business of Parent's Family,
except as such disclosure may be required by law or in connection with
Executive's employment hereunder or except as such matters may have been known
to Executive at the time of his employment by Company. This covenant and
agreement of Executive shall survive this Agreement and continue to be binding
upon Executive after the expiration or termination of this Agreement, whether by
passage of time or otherwise so long as such information and data shall be
treated as confidential by Parent's Family.
9) RESTRICTIVE COVENANTS
a) Covenant-not-to-Compete.
(1) In consideration of Company's agreements contained herein and the
payments to be made by it to Executive pursuant hereto, and except
for termination of Executive's employment by Company without Cause,
or termination of employment by Executive for Good Reason, Executive
agrees that, for two years ("Time Period") following his termination
of employment and so long as Company is continuously not in default
of its obligations to Executive hereunder or under any other
agreement, covenant, or obligation, he will not, without prior
written consent of Company, consult with or act as an advisor to
another company about activity which is a "Competing Business" of
such company in the United States, Canada and Europe ("Area"). For
purposes of this Agreement, Executive shall be deemed to be engaged
in a "Competing Business" if, in any capacity, including but not
limited to proprietor, partner, officer, director or employee, he
engages or participates, directly or indirectly, in the operation,
ownership or management of the activity of any proprietorship,
partnership, company or other business entity which activity is
competitive with the then actual business in which Company or Parent
is engaged on the date of, or any business contemplated by the
Company's or Parent's business plan in effect on the date of notice
of, Executive's termination of employment. Nothing in this
subparagraph is intended to limit Executive's ability to own equity
in a public company constituting less
than one percent (1%) of the outstanding equity of such company, when
Executive is not actively engaged in the management thereof. Company
shall furnish Executive with a good-faith written description of the
business or businesses in which Company and Parent are then actively
engaged within 30 days after Executive's termination of employment,
and only those activities so timely described which are in fact
actively engaged by Company and Parent may be treated as activities
of which one may be engaged that is competitive with Company and
Parent.
b) Non-Solicitation. Executive recognizes that Parent's Family's customers
are valuable and proprietary resources of Parent's Family. Accordingly,
Executive agrees that for a period of one year following his termination
of employment, and only so long as Company is continuously not in default
of its obligations to Executive hereunder or under any other agreement,
covenant, or obligation, he will not directly or indirectly, through his
own efforts or through the efforts of another person or entity, solicit
business from any individual or entity located in the United States,
Canada, and Europe-which obtained services from Parent's Family at any
time during Executive's employment with Company, he will not solicit
business from any individual or entity located in the United States,
Canada, or Europe which was solicited by Executive on behalf of Parent's
Family, and he will not solicit employees of Parent's Family who would
have the skills and knowledge necessary to enable or assist efforts by
Executive to engage in a Competing Business.
c) Remedies: Reasonableness. Executive acknowledges and agrees that a breach
by Executive of the provisions of this Section 10 will constitute such
damage as will be irreparable and the exact amount of which will be
impossible to ascertain and, for that reason, agrees that Company will be
entitled to an injunction to be issued by any court of competent
jurisdiction restraining and enjoining Executive from violating the
provisions of this Section. The right to an injunction shall be in
addition to and not in lieu of any other remedy available to Company for
such breach or threatened breach, including the recovery of damages from
Executive.
Executive expressly acknowledges and agrees that (i) the Restrictive
Covenants contained herein are reasonable as to time and geographical
area and do not place any unreasonable burden upon him; (ii) the general
public will not be harmed as a result of enforcement of these Restrictive
Covenants; and (iii) Executive understands and hereby agrees to each and
every term and condition of the Restrictive Covenants set forth in this
Agreement.
d) Change of Control. The provisions of this Section 10 shall lapse and be
of no further force or effect if Executive's employment is terminated by
Company "without Cause" or by Executive for "Good Reason."
10) BENEFIT AND BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon Company, its
successors and assigns, including but not limited to any company, person, or
other entity which may acquire all or substantially all of the assets and
business of Company or any company with or into which Company may be
consolidated or merged, and Executive, his heirs, executors, administrators, and
legal representatives, provided that the obligations of Executive may not be
delegated.
11) NOTICES
All notices hereunder shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid and return receipt requested:
If to Company, to: Insight Worldwide, Inc.
c/o Michael Gumbert, President, COO
6820 South Harl Avenue
Tempe, Arizona 85283
If to Executive, to: Dino Farfante
904 W. Windsong Drive
Phoenix, Arizona 85045
Either party may change the address to which notices are to be sent to it by
giving ten (10) days written notice of such change of address to the other party
in the manner above provided for giving notice. Notices will be considered
delivered on personal delivery or on the date of deposit in the United States
mail in the manner provided for giving notice by mail.
12) ENTIRE AGREEMENT
The entire understanding and agreement between the parties has been incorporated
into this Agreement, and this Agreement supersedes all other agreements and
understandings between Executive and Company with respect to the relationship of
Executive with Company, except with respect to other continuing or future bonus,
incentive, stock option, health, benefit and similar plans or agreements.
13) GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Arizona.
14) CAPTIONS
The captions included herein are for convenience and shall not constitute a part
of this Agreement.
15) DEFINITIONS
Throughout this Agreement, certain defined terms will be identified by the
capitalization of the first letter of the defined word or the first letter of
each substantive word in a defined phrase. Whenever used, these terms will be
given the indicated meaning.
16) SEVERABILITY
If any one or more of the provisions or parts of a provision contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity or unenforceability shall not affect any other
provision or part of a provision of this Agreement, but this Agreement shall be
reformed and construed as if such invalid, illegal or unenforceable provision or
part of a provision had never been contained herein and such provisions or part
thereof shall be reformed so that it would be valid, legal and enforceable to
the maximum extent permitted by law. Any such reformation shall be read as
narrowly as possible to give the maximum effect to the mutual intentions of
Executive and Company.
17) TERMINATION OF EMPLOYMENT
The termination of this Agreement by either party also shall result in the
termination of Executive's employment relationship with Company in the absence
of an express written agreement providing to the contrary. Neither party
intends that any oral employment relationship continue after the termination of
this Agreement.
18) TIME IS OF THE ESSENCE
Company and Executive agree that time is of the essence with respect to the
duties and performance of the covenants and promises of this Agreement.
19) NO CONSTRUCTION AGAINST EITHER PARTY
This Agreement is the result of negotiation between Company and Executive and
both have had the opportunity to have this Agreement reviewed by their legal
counsel and other advisors. Accordingly, this Agreement shall not be construed
for or against Company or Executive, regardless of which party drafted the
provision at issue.
COMPANY:
INSIGHT DIRECT WORLDWIDE,INC.
an Arizona corporation
/s/ Michael Gumbert
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Michael Gumbert, President, COO
EXECUTIVE:
Dino Farfante, COO and Executive Vice
President, Sales and Marketing
/s/ Dino Farfante
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Dino Farfante